The Cost of an Open System

ERIC ZORN

November 18, 1993|By ERIC ZORN

CHICAGO — Chicago. -- The American system of law and practice of journalism make it so that the seemingly outlandish allegations of a nobody like Steven Cook can force a powerful somebody like Cardinal Joseph Bernardin to account.

The courts and the media take such charges seriously, despite the vast difference in station and public credibility between the accuser and the accused. The details of the charges are not kept secret until a judge or panel can decide if there is a shred of a chance that they are true; instead they are published and freely disseminated before the presentation in court of even one piece of real evidence.

For all that the commotion surrounding Mr. Cook's allegations that Cardinal Bernardin and another cleric sexually abused him in Cincinnati in the mid-1970s may be unfair and even painful to many people, it is also a prime example of our freedoms and our generally open legal system at work.

''It hurts at a personal level to have to say it,'' said De Paul University law professor Douglas Cassel, who is Roman Catholic, ''but there is a public interest in making certain that this matter is resolved in public.''

The premature (but not yet permanent) sullying of the cardinal's reputation in this case is the unpleasant, but almost unavoidable, consequence of our system for resolving such disputes, Professor Cassel and others suggested. It's the worst system there is, to paraphrase Winston Churchill, except all the other systems that have been tried through history.

''Among our most highly cherished socio-political principles are that individuals should have access to the courts to vindicate their rights, and that the press should be free to communicate information about people in the public eye,'' said Martin Redish of Northwestern University Law School. ''The end result, unfortunately, is that public figures can get hung out to dry.''

Think of William Kennedy Smith, Justice Clarence Thomas and Woody Allen, all of whom were well tarnished by accusations of sexual misconduct, only later to be officially vindicated. Think of elfin zillionaire Michael Jackson, driven to abusing pain-killing drugs by allegations of child molestation that have been widely publicized, though they have not yet resulted in criminal charges.

''It's simply a cost of our system,'' said Mr. Redish. ''It's preferable to the alternative.''

The alternative would be secrecy and silence. It would be a legal system that kept such allegations and filings private and that conducted the proceedings behind closed doors. It would be a media corps that either wore an official gag or politely declined to investigate possibly embarrassing stories about the rich and powerful -- like, say, Watergate.

Our tradition of general openness in the law is a historical reaction to secret tribunals, such as those conducted during the Spanish Inquisition and the so-called Star Chamber council in 15th- and 16th-century England. The Star Chamber was a private court used by the monarchy to punish dissent, and its name became a synonym for unfair court proceedings.

''When the government does things in secret, powerful people can manipulate the process to their bidding,'' said Jeffrey Shaman of De Paul University Law School. ''So although I have tremendous sympathy for someone in the cardinal's position who might be falsely accused, I don't think the answer is to make any part of the judicial process secret.''

And the media, despite their excesses -- the fixation, for instance, on the idea that public opinion is in some way a useful measure of the truth or falsehood of the charges leveled by Steven Cook -- lumber along with the same idea in mind.

In the end, open, persistent and wide-ranging inquiry will more often than not bring us close to the truth. Rather than let Mr. Cook's allegations float in the air unchallenged until trial, reporters dissect them, seek immediate responses from those he accuses and look into his past and circumstances in an attempt to put what he has said into some perspective.

In an open society, in which genuine victims, as well as deluded crackpots and vindictive liars, are given full access to the courts, the search for truth will sometimes take us down some false and terrible byways. It may pay for all of us to remember that as this troubling story unfolds.

Our system listens to its Steven Cooks. The only thing worse would be if it didn't.